Secret Keepers and Secret Spillers: Spooks and the Press in Post-9/11 America

In 2003, two New York Times reporters caught the scent of the story that would come to define the surveillance state and the press’s response to it. Stuart Stevens tells the story behind that story.

The current NSA spying story is the latest chapter in one that that started in September 2001, and began to be uncovered in 2003. That’s when two reporters in the New York Times D.C. bureau—James Risen covering the CIA, Eric Lichtblau the Justice department—independently begin to pull on the threads of a fascinating story.

Unlike the recent document dump by a single source, Lichtblau and Risen were working with multiple sources, who were telling them different details about some kind of new surveillance project the Bush administration had launched. Though the two were casual newsroom acquaintances, they hadn’t worked together before. Each worked their sources for months before investigative editor Rebecca Corbett suggested that they might be working on different ends of the same story and they began to collaborate on their reporting about what they called “The Program.”

The three—Lichtblau, Risen, and Corbett—were an unlikely combination. Lichtblau was Ivy League and looked it, with a classic, direct style of questioning that was blunt and to the point. A large man who seems more like an amiable detective than a reporter, Risen, also an Ivy Leaguer, was the son of a railroad man with little patience for self-important elites. Rebecca Corbett had recently arrived at the Times from the Baltimore Sun, where she had edited David Simon, who later named a character for her in his show The Wire. She entered with an outsider’s indifference to the long-running feuds of the various factions within the Times. I was later hired by HBO to write a script about their story.

Working together, Lichtblau and Risen began to piece together what they came to realize was a massive and unprecedented undertaking by the NSA to monitor phone calls. Lacking one single source to detail the program, it took over a year before the two reporters and their editor were ready to publish their story.

But then–Executive Editor Bill Keller refused to go forward.

Keller’s decision was based on a number of factors. The Bush administration had made a direct appeal to the Times not to publish the story, citing national security reasons. He was also concerned with publishing a potentially explosive story weeks before a presidential election—though the obvious solution to that was to publish the story shortly after the election, which Keller was unwilling to do.

After a furious internal debate, Keller laid down the edict that the Times would only publish the story if it could be established that the surveillance program was illegal. It was a high barrier as no one outside The Program had challenged its legality if only because no one was aware of its existence.

The story highlighted the Bush administration’s authorization to the NSA to listen in on Americans and others in America without seeking warrants.

In the now famous hospital-bed confrontation between an ailing Attorney General John Ashcroft and White House officials, Ashcroft had refused to sign rulings that would have explicitly granted the White House the legal authority for its already ongoing surveillance—which it appears the Obama administration has now pursued.

Yet the absence of such a ruling did not itself mean The Program was illegal. Lichtblau and Risen were not aware of Ashcroft’s refusal at the time (they would later break that story) but tasked with proving that a huge and ultra-secret program was illegal seemed all but impossible.

Within the Times, the Lichtblau-Risen story had become ground zero for the explosive debate over how to balance the free press’s obligation to inform citizens with reporters’ personal obligation to be good citizens and not damage the security of the United States. In recent weeks, a similar debate apparently occurred within The Washington Postas they were negotiating with Edward Snowden, the NSA leaker, who apparently approached the Post (and perhaps other papers) with his stolen material. Frustrated with the Post’s deliberations and guidelines, Snowden also went to the U.K.’s Guardian.

In the winter of 2005, Jim Risen went on book leave from the Times to work on what became State of War: The Secret History of the CIA and the Bush Administration. On the side, he and Lichtblau continued to work on the story but Risen had decided to include information about The Program in his new book even if the Times refused to publish it. In essence, Risen was calling Keller’s bluff: Either you publish this story or I will.

There are varying opinions inside the Times as to the impact of Risen’s looming book publication and the ultimate decision that the Times finally made in December of 2005 to publish the story. Some believe the story would never have run without the pressure of Risen’s forthcoming book, while others credit additional reporting by Lichtblau and Risen establishing that some within the Bush administration had serious concerns about the legality of the surveillance.

On December 16, 2005, the Times finally published the story: “Bush Let U.S. Spy on Callers Without Courts.” The story highlighted the Bush administration’s authorization to the NSA to listen in on Americans and others in America without seeking warrants.

Risen’s book was published in 2006 and he became entangled in an intensive Justice Department leak investigation. Ironically, the investigation focused not on the NSA story but another one that the Times had refused to publish and Risen included in his book. That was the straight-from-a-spy-thriller account of a CIA plot to sell Iran nuclear power plant plans that outwardly appeared perfect but with enough hidden flaws to thwart the production of weapons-grade material. The Bush administration pursued this investigation furiously before finally dropping it.

The Obama administration revived the investigation of Risen, taking the aggressive stance against journalists that we are learning is standard practice for the Holder Justice Department, including seizure of phone records. It’s safe to say that many within the Times, and elsewhere in the journalism community, are shocked that the president many so enthusiastically championed is presiding over the first administration in American history to sign criminal warrants against reporters, for reporting.

For better or worse, secrets are hard to keep and secrets that involve billions of dollars and thousands of people seem all but impossible to remain secure. What the Times struggled with in 2004 and 2005 and the Post, Guardian, and possibly others have debated with the Snowden leaks is a critical question with no easy answer: how to balance the right to know with national security.

One thing is clear: if the Post and the Guardian had refused to publish Snowden’s stolen materials—if every publication on the planet had refused to publish them, for that matter—all Snowden needed to do was post them on the web himself. Every computer is a potential Wiki-Leaks platform, without editorial board superversion. Technology has no ideology or morals. It will spy on all of us just as it will expose those who spy.